dissenting.
I respectfully dissent. I agree with the majority that pursuant to Trial Rule 17(A), Fifth Third Bank, as personal representative of the Estate, must be given a reasonable time to be substituted for the Inlows as plaintiff before the trial court can dismiss the action. However, I do not agree with some of the majority's reasoning, and I believe we must address the trial court's denial of the Inlows' second motion to amend the complaint to allow them to proceed as assignees of the claims of the personal representative against the defendants.
First, I think it is necessary to emphasize that "the Inlows" as referred to in the majority opinion and in this dissent are not all of the heirs of the intestate decedent. Rather, "the Inlows" are the four children of the decedent by his first marriage. His other heirs are his second wife and a child of his second marriage. Pursuant to Ind. Code § 29-1-2-1, the second wife is entitled to one-half of the Estate, while the five children are entitled to share equally the other half of the Estate. Consequent, ly, the Inlows who brought this action collectively are entitled to four-tenths of the decedent's intestate Estate. By their action here, the Inlows seek to recover the entire amount by which the Estate allegedly has been reduced by the failings of the defendants. Any damage to an estate has its effect on all heirs according to their respective shares. Some of them should not be entitled to recover what is due to all of them.
Secondly, I cannot agree with the majority opinion's conclusion that:
The Inlows' status as heirs is evidence of their personal stake in the lawsuit, and the potential devaluation of their shares as a result of the alleged conduct of the accountants places them in immediate danger of sustaining a direct injury. Therefore, we find that the Inlows have standing.
Op. at 1182. I do not see that the Inlows have standing. It is, of course, the case that by virtue of Ind.Code § 29-1-7-23 the real and personal property of the decedent passed to the heirs of the dece*1185dent upon his death.1 However, the property passed to the heirs "subject to the possession of the personal representative and to the election of the surviving spouse and shall be chargeable with the expenses of administering the estate, the payment of other claims and the [allowances] under IC 29-1-4-1, except as otherwise provided in IC 29-1." Ind.Code § 29-1-7-23. In other words, the heirs have no right to the enjoyment or use of any Estate property until the obligations of the Estate have been met and what property remains is distributed to the heirs See Ind.Code § 29-1-14-9 (listing the order in which claims shall be paid if the assets of the estate are insufficient to pay all claims).
The Probate Code imposes upon the personal representative a requirement to take "possession of all the real and personal property other than allowances under IC 29-1-4-1." Ind.Code § 29-1-13-1. The personal representative has a duty to protect those assets for all interested parties, including the heirs, the creditors, and the government. In re Robak, 654 N.E.2d 731, 735 (Ind.1995); Ind. Dep't of State Revenue, Inheritance Tax Div. v. Cohen's Estate, 436 N.E.2d 832, 836 (Ind.Ct.App.1982). Accordingly, the Probate Code gives the personal representative numerous powers over an estate's assets. For example, the Probate Code gives the personal representative "full power" to bring a lawsuit as personal representative of an estate, "for any demand of whatever nature due the decedent or his estate or for the recovery or possession of any property of the estate or for trespass or waste committed on the estate of the decedent in his lifetime, or while in the possession of the personal representative." Ind.Code § 29-1-13-3. The personal representative may continue a business and invest the funds of an estate. Ind.Code §§ 29-1-183-11, 29-1-13-14. The personal representative shall pay taxes, collect rents and earnings, and keep buildings and fixtures in "tenantable repair." IC. § 29-1-18-1. The personal representative may protect buildings by insurance and may maintain a cause of action for possession of or to determine title to real property. Id. The personal representative may deposit an estate's money in a bank account and, under some circumstances, may perform contracts entered into by the decedent. Ind.Code §§ 29-1-13-13, 29-1-13-14. It is clear under the Probate Code that the personal representative is in complete charge of an estate's property until such time as the estate is wound up.
If the personal representative does not meet his obligations, the personal representative can be removed by the court, either on its own motion or upon petition by an interested party. Ind.Code § 29-1-10-6. The personal representative is also subject to suit, along with his bond surety, for damages that. may result from his failure to discharge his duties as personal representative. Ind.Code §§ 29-1-11-10, 29-1-14-11, 29-1-16-1. If interested persons are concerned about the management of an estate, they may petition the court to require the personal representative to file a verified accounting of his administration. Ind.Code § 29-1-16-3. In addition, if interested parties believe that the personal representative is not diligently pursuing a claim that belongs to the estate, those interested parties may petition the court to hold a hearing to determine whether the claim should be pursued and whether a *1186special administrator should be appointed to pursue the claim on behalf of the estate. Ind.Code § 29-1-13-16.
It is inconsistent with the regime established under the Probate Code to give standing to heirs, and most particularly only some heirs, to bring claims for damages to the property of the Estate when there is a personal representative charged with the obligation to bring such claims and subject to removal or liability for not meeting that obligation. See I.C. §§ 29-1-13-3, 29-1-10-6, 29-1-16-1, 29-1-11-10. Consequently, I conclude that the Inlows have no standing to sue the Accountants for any shortcomings in their work for the personal representative of the Estate. See, e.g., McGahan v. Nat'l Bank of Logansport, 151 Ind.App. 658, 670, 281 N.E.2d 522, 530 (1972) (holding that an heir could not sue in her individual capacity to recover assets of a decedent from a third party; rather, the heir had to petition the court to reopen the estate and to appoint the heir administratrix de bonis non to recover the assets still unadminis-tered). Having no standing, the Inlows also are not the real parties in interest under Ind. Trial Rule 17 to bring this lawsuit against the Accountants.
Nevertheless, the standing issue cannot be fully resolved unless we deal with whether the trial court erred by denying the Inlows' motion to allow the second amended complaint. In the second amended complaint, the Inlows asserted that the assignment of rights by the personal representatives, Kindig and Fifth Third Bank, gives them standing to sue the Accountants. If the assignment from the personal representatives is valid, the Inlows have standing on remand of this cause to pursue this claim as assignees of the estate's claim against the Accountants, and the current personal representative would no longer be the real party in interest, having assigned its "interest" to the Inlows. ' If on the other hand, the assignment of rights is invalid, the Inlows remain without standing to pursue the claim against the Accountants, and the current personal representative remains the real party in interest who could proceed upon remand of this cause. The parties and the trial court must know where things stand. Addressing whether the trial court abused its discretion by denying the second amendment to the pleadings allows us to tell the parties and the trial court where things stand. -
Ind. Trial Rule 15(A) controls second amendments to pleadings and provides, in pertinent part, that "a party may amend his pleading [a second time] only by leave of court or by written consent of the adverse party; and leave shall be given when justice so requires." This court has previously set out the law that controls appellate review of the trial court's denial of a motion to amend pleadings:
Trial courts should liberally permit amendments, while considering any prejudice to the non-moving party. A trial court has broad discretion in deciding whether to permit or deny amend'ments to pleadings, because of its strategic advantage in balancing various trial considerations. On review, we generally affirm the trial court's decision regarding a discretionary motion if there is any rational basis for the decision.
An abuse of discretion occurs when there is a conclusion or judgment that is clearly against logic and the natural inferences to be drawn therefrom, or a decision that contravenes reasonable, probable and actual deductions. It is not an abuse of discretion to deny a motion to amend a pleading where such an amendment would be futile.
Strodtman v. Integrity Builders, Inc., 668 N.E.2d 279, 284 (Ind.Ct.App.1996) (cita*1187tions omitted), reh'g granted on other grounds, 668 N.E.2d 285, trans. denied.
Here, the trial court did not abuse its discretion when it denied the Inlows' motion to amend their complaint because the amendment would have been futile. Seq, e.g., id. With the proposed amendment, the Inlows sought to assert that they had standing to bring the lawsuit against the Accountants pursuant to the assignment from Kindig and Fifth Third Bank that allegedly assigned the personal representative's right to sue the Accountants to the Inlows. However, that assignment of rights was not valid.
The personal representative of an estate is a fiduciary. Ind.Code § 29-1-1-3. His fiduciary responsibility "extends to all legatees." Fall v. Miller, 462 N.E.2d 1059, 1063 (Ind.Ct.App.1984). As this court stated in Fall:
There is a thread which runs through the law governing fiduciary relationships which forbids a person standing in a fiduciary capacity to another from profiting by dealing in the property of his beneficiary, and any such profit realized must be disgorged in favor of that beneficiary.
Id. at 1061. Accordingly, a personal representative cannot profit from the use of estate funds. Id. at 1063. A personal representative cannot purchase the legacy of any legatee for his benefit or for the benefit of the other legatees. Id. In addition, the personal representative cannot transfer assets from himself as personal representative of the estate to himself as an individual. Williamson v. Williamson, 714 N.E.2d 1270, 1274 (Ind.Ct.App.1999), reh'g denied, trans. denied.
In the context of whether a personal representative could sell real property to himself from an estate, this court discussed that the policy behind prohibiting a personal representative from dealing assets to himself for his own personal benefit is "to eliminate any hint of impropriety or fraud." Id. We. are not necessarily concerned with whether fraud or injury to the estate actually occurred in a specific case. Id. Rather, the rule is set up to prevent the possibility of fraud. Id. In addition, by prohibiting a fiduciary from retaining "gain or profit from wrongful, speculative, or self-dealing transactions in his beneficiary's propertyl,]" while also holding the fiduciary liable for losses to the estate, we hope to effectively deter fiduciaries from engaging in . inappropriate transactions with estate assets. Fall, 462 N.E.2d at 1063.
Here, any loss or damage to the Estate caused by any acts or omissions of the Accountants was loss or damage to the Estate as a whole, affecting all heirs. Any claim for that loss or damage belonged to the Estate and could be brought by the personal representative. Kindig promised to assign the Estate's right to sue the Accountants to the Inlows upon the Inlows promise not to sue Kindig personally for his failings as personal representative. In essence, Kindig traded an asset belonging to the Estate for his own personal benefit. As discussed above, fiduciaries, including personal representatives, are prohibited from engaging in transactions involving estate property for their own benefit. See also Thomasson v. Brown, 43 Ind. 203, 206 (1873) (holding that when an administrator traded notes belonging to the estate for assets that he was going to keep for himself, the administrator committed a breach of his duty as administrator and wasted and squandered the assets of the estate). Consequently, the agreement between Kindig and the Inlows is void, and the assignment of rights must be set aside. See id. (holding that a third party could not profit by keeping assets of an estate from their rightful owner when that third party knew when he acquired the assets that the administrator was trading the es*1188tate's assets for the administrator's own benefit); see, e.g., Williamson, 714 N.E.2d at 1274 (holding that personal representative's sale of estate's real property to himself as an individual was void and the deed must be set aside). |
Because the agreement between Kindig and the Inlows by which Kindig traded the estate's assets for his own benefit is void, that agreement could not give rise to a valid assignment of rights by which the Inlows would have standing to sue the Accountants. Consequently, as the second amendment was futile, the trial court did not abuse its discretion when it denied the Inlows' second motion to amend their complaint. See Strodtman, 668 N.E.2d at 284.
I recognize that a personal representative could, with court approval, distribute to an heir by assignment an asset of the estate as a partial distribution to be credited against the heir's share of. the total net estate. See Ind.Code § 29-1-17-1. There is nothing in the transaction that led to the assignment and release to suggest it was an approved distribution. In fact, the probate court expressly avoided approving of the assignment.
I would remand this cause either for the personal representative, Fifth Third Bank, to be substituted for the Inlows as plaintiff or for the action to be dismissed.
. Notwithstanding the comment of the Probate Code Study Commission following Ind. Code § 29-1-13-1, I think it is clear that Ind.Code § 29-1-7-23 makes no distinction between the real property and the personal property of the decedent. All property passes upon death. See I.C. § 29-1-7-23 ("When a person dies, his real and personal property passes ... to the persons who succeed to his estate as his heirs. ...").